Do You Need to Expedite a Copyright Registration Filing?
Do you need to expedite the copyright registration process?
The Library of Congress’ Copyright Office calls this application “Special Handling.” Now, it does require an additional fee of $800 on top of the $65 registration fee for a normal application. You should receive the notice of the copyright registration number or other correspondence from the Library of Congress’ Copyright Office within five business days.
See U.S. Copyright Office, Special Handling: Circular No. 10, pp. 1–2 (2017). The Copyright Office grants requests for special handling in situations involving, inter alia, “[p]ending or prospective litigation,” and “make[s] every attempt to examine the application … within five working days.” Compendium of U.S. Copyright Practices § 623.2, 623.4 (3d ed. 2017).
Special handling is the expedited processing of an online or paper application for registration of a claim to copyright or for the recordation of a document pertaining to copyright. It is granted in certain circumstances to those who have compelling reasons for this service. It is subject to the approval of the chief of the Receipt Analysis and Control Division, who must consider the workload of the Copyright Office at the time the request is made.
Apart from the expedition, the copyright registration application works in the same manner as any other copyright application.
Special handling is granted only in the following specific circumstances:
- pending or prospective litigation
- customs matters
- contract or publishing deadlines that necessitate the expedited issuance of a certificate
The copyright applicant is required to disclose the author, the copyright claimant, the type of work being registered (sound recordings, musical compositions, literary works, etc.), and uploading an electronic copy of the work on the copyright office website should the applicant be filing online.
Before submitting a copyright registration
You should confirm the number of copies you need to deposit and check to see if there are special deposit requirements for the type of work you want to register before submitting your registration.
For example, to register a motion picture, you must deposit a copy of the motion picture and a separate written description of its contents. Details about these requirements can be found on the copyright office website or by writing or calling the copyright office.
The copyright office will not return the copies you deposit with them.
Registering a copyright online
You can register a copyright online by logging in to the copyright office’s online registration system, filling out the registration form, and submitting payment. In some cases, you can also electronically submit a copy of the work you are registering.
Types of copyrights that can be registered online
Basic copyrights can be registered online. These include copyrights for literary works, visual arts works, performing arts works, sound recordings, and motion pictures. You can register a copyright online even if you are planning to mail a copy of the work to the copyright office.
Works that can be deposited electronically
You can submit the following types of work electronically. All other works must be mailed to the copyright office, even if you complete a registration application online.
- Unpublished works
- Works that are only published electronically
- Three-dimensional works for which the deposit requirement is photographs or prints of the actual work.
Registering a copyright by mail
The copyright office has different forms for literary works, visual arts works, performing arts works, sound recordings, and single serials. These forms are available on the copyright office website.
A completed form must be sent in the same package as payment and a copy of the work. Payment must be made by check or money order.
Pending or Prospective Litigation
Should copyright owners need to file litigation based upon copyright infringement, a copyright registration certificate is required. This does not matter if the filing is made in Federal Court or in the newly-created Copyright Claims Board. Therefore, an expedited registration is needed. The workload of the copyright office may delay a normal copyright application for 3-6 months, so requesting special handling is a guarantee to have the registration certificate.
Litigation need not come to fruition in order to make the special handling request. Any threat of litigation or any potential litigation need may require the need for the copyright registration.
This requirement was solidified in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 586 U.S. ___ (2019), which is a U.S Supreme Court case in which the Court ruled that a copyright infringement suit must wait until the copyright is successfully registered by the United States Copyright Office. Writing for the unanimous Supreme Court, Justice Ginsburg stated, “we conclude that “registration … has been made” within the meaning of 17 U.S.C. § 411(a) not when an application for registration is filed, but when the Register has registered a copyright after examining a properly filed application.” At the time, many lawyers would file the copyright application and then file the copyright infringement lawsuit the next day, resulting in the defendants filing motions to dismiss the lawsuit as no registration was of record. This is not the only case handling this question. There can be no case or controversy as to the issue of copyright infringement between a plaintiff and defendant because a plaintiff “cannot sue for infringement of a copyright” that it has not registered. Cal. Furniture Collection, Inc. v. Harris Adamson Home, LLC, 2019 WL 7882081, at *2 (C.D. Cal. Oct. 18, 2019) (holding that the plaintiff did not have standing to seek declaratory relief of non-infringement because the defendant had neither applied for nor been granted copyright registrations); see also Sky Billiards, Inc., v. WolVol, Inc., 2016 WL 7479428, at *4 (C.D. Cal. July 11, 2016) (granting defendant’s motion to dismiss as to plaintiff’s claim for declaratory judgment of non-infringement because the defendant had no registered copyright and “Plaintiff does not have standing to seek declaratory judgment”).
Copyright protection does begin when a work protected by the Copyright Act is fixed within a medium. The need for the registration is only for litigation, not for copyright protection. Damages in a copyright infringement lawsuit will be affected, but that is because the infringement happened before the registration was made.
This rule is the same for Federal Court or the Copyright Claims Board. What is the difference? The Copyright Claims Board is the newly-created court for small-claims enforcement of copyright infringement matters. Any matter under $30,000 is to be filed in the Copyright Claims Board. Federal Court is for larger matters.
If you are the author or copyright claimant and you receive a letter in regards to the ownership or other litigation threat and you need to file, special handling must be your route to receive the copyright certificate before litigation is filed. An unregistered work cannot be the basis of copyright litigation.
Customs Matters
Should there be any matter with customs, expedited handling is acceptable.
Contract or Publishing Deadlines that Necessitate the Expedited Issuance of a Certificate
The copyright applicant can state what the contract or publishing deadlines are and the Copyright Office will accept that reason to expedite the copyright application.
Once a request for special handling is received and approved, every attempt is made to process the claim or recordation within five business days. However, no guarantee is made that the work can be processed within this time. If correspondence is required, the Office makes every effort to process the claim expeditiously after the reply is received. Once a claim is processed, the Office either issues the certificate of registration or notifies the applicant of any defect in the claim. In the case of a document, the document is returned with a certificate of recordation.
Do you have questions about expediting your copyright application? Contact us here at Verna Law, P.C., an intellectual property boutique law firm at anthony@vernalaw.com or at 914-908-6757.